EURO LIT INSIGHTS

“Dominant motive…lies in the financial interests of its backers”: High Court Strikes Out a Representative Action under CPR 19.8 by Passengers in 116,000 Delayed or Cancelled Flights

by Jack Thorne and Briana Walley | Sep 12, 2024 | Court Judgment, Transportation & Logistics, United Kingdom

On 2 September 2024, the High Court struck out an application for a representative proceeding under CPR 19.8 that had been brought against certain airlines for cancelled and delayed flights: Smyth v British Airways Plc & Ors [2024] EWHC 2173 (KB). The Court considered that the “same interest” requirement under CPR 19.8 had not been met and that the claim was motivated by financial recovery for the litigation funder, and not the interests of the would-be class. The case highlights the importance of a well-defined class and a suitable representative claimant in order for representative proceedings to proceed.

Background

Ms Claire Smyth had booked a flight with British Airways (BA) from London to Nice. A week before she was due to depart, the flight was cancelled. Under Article 7(1) of the EU Regulation 261/2004 (retained post-Brexit), Ms Smyth had the right to claim compensation against BA (who manages a portal through which passengers may claim compensation). However, Ms Smyth chose not to use the portal and instead brought a representative proceeding on behalf of her fellow travellers – not just on her flight, but anyone who had booked flights with BA or easyJet scheduled to depart from, or arrive at,

All Aboard the Omnibus Claim Form

by Jack Thorne and Jonathan Robb | Sep 10, 2024 | Court Judgment, United Kingdom

In Adams and others v Ministry of Defence,[1] the High Court has recently followed the Court of Appeal judgment in Morris and others v Williams & Co Solicitors (a firm)[2], in confirming that multiple claimants can bring proceedings via a single Claim Form, provided that the test of convenience is satisfied.

The English Courts have shown intent in recent years on embracing group and class action litigation, not least in seeking to maintain a position as a pre-eminent litigation forum. Under the Civil Procedure Rules (CPR), there are a number of procedural routes that potential groups/classes can use to bring actions, subject to the specific circumstances of the cases at hand. These include, in particular:

Use of a single Claim Form for multiple claimants in accordance with CPR 19.1 and CPR 7.3 (also referred to as omnibus claims).
Multiple claims (with sufficient degrees of commonality) that are issued separately (or through an omnibus Claim Form), which are case managed together but proceed through lead or sample claimants.
Multiple separate claims that are case managed under a group litigation order in accordance with CPR 19.21-19.26.
A representative action pursuant to CPR 19.8 or 19.9, which is

English High Court Enforces Asymmetric Jurisdiction Clause in a Syndicated Loan Facility Agreement

by Mark Fine and Harry Denlegh-Maxwell | Aug 28, 2024 | Court Judgment

On 24 May 2024, the English High Court granted final injunctive relief to Barclays Bank Plc (Barclays), both in the form of an anti-suit injunction and an anti-enforcement injunction, arising out of a syndicated loan agreement (the Facility) entered into between Barclays and PJSC Sovcombank (Sovcombank).1 In a judgment that will be of interest to financial institutions and investors involved in cross-border disputes and to the public loan market, the English Courts have demonstrated a willingness to enforce asymmetric jurisdiction clauses, which are commonly seen in the syndicated loans market.

Read the full article

Compensation Under GDPR Only For Damage Actually Incurred

by Tobias Meyer, Thomas Hauss and Matthias Distler | Aug 9, 2024 | Court Judgment, Regulatory/Compliance

On January 25, 2024 (Case C-687/21), the European Court of Justice ruled in a continuation of its previous data protection case law that a claim for damages based on Art. 82 GDPR does not have a punitive function, but merely a compensatory function. The ECJ thus concludes that a claim for damages always requires the claimant to have suffered concrete damage. A purely hypothetical risk of misuse of data is not sufficient.

Corporate Liability is Extended to New Predicate Crimes Under Italian Law

by Fabio Cozzi and Giuseppe Tinello | Aug 7, 2024 | Legislative Update, Italy

As it is widely known, Italian Legislative Decree No. 231/2001 (Decree 231) governs the liability of legal entities (including Italian subsidiaries of foreign companies) in case certain offenses (the Predicate Crimes) are committed in the interest or to the benefit of the entity by its directors, managers, representatives, or employees under their surveillance.

The legal entity might avoid liability under Decree 231 if, inter alia, (i) it has adopted, effectively implemented, and kept up to date an internal organisational, management and control model (the Model 231), and (ii) it has appointed a Supervisory Board (Organismo di Vigilanza) to monitor and ensure company’s compliance with the Model 231.

The adoption and implementation of a Model 231 is not mandatory under Italian law. However, failure to do so could expose a company to potential risk of liability if a Predicate Crime is committed in its interest or to its benefit, insofar the entity would not have the chance to demonstrate that a compliance system was set in order to prevent offenses of the type occurred (i.e., there was not an organizational fault).

The Italian legislator frequently modifies the list of Predicate Crimes (and/or the definitions of specific Predicate Crimes) for which a

“Dominant motive…lies in the financial interests of its backers”: High Court Strikes Out a Representative Action under CPR 19.8 by Passengers in 116,000 Delayed or Cancelled Flights

All Aboard the Omnibus Claim Form

English High Court Enforces Asymmetric Jurisdiction Clause in a Syndicated Loan Facility Agreement

Compensation Under GDPR Only For Damage Actually Incurred

Corporate Liability is Extended to New Predicate Crimes Under Italian Law

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